Report No. 42

16.51. Section 317 to be revised.-

In view of the severity of the punishment under section 317, we think it desirable that the offence should be more restricted in scope, and confined to exposure etc. of children below 5 years, and that the mens rea should be indicated more precisely, with reference to the risk of life or serious injury to health. The Explanation stating that the section does not prevent the trial of the offender for murder or culpable homicide if the child dies in consequence of the act appears to us to be unnecessary and could safely be omitted. The section may, accordingly, be revised as follows.-

"317. Exposure and abandonment of child under five years by parent or person having care of it.- Whoever being the father or mother of a child under the age of five years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall, if such act endangers, or is likely to endanger, the life of the child or permanently injures, or is likely to permanently injure, the health of the child, be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

16.52. Section 318 (Concealment of birth.-Omission recommended.-

Section 318 punishes concealment of birth by secret disposal of the dead body of a child. In our view, the Penal Code need not punish such concealment. For statistical purposes, concealment of birth can be punished under the law relating to registration of births and deaths. If the child is illegitimate, it is wrong to use the criminal law for the purpose in modern times. If the child is legitimate, there would not, ordinarily, be any inclination to conceal the birth. The practice of killing female children has practically disappeared. If the child has been killed after birth, and then the crime is sought to be suppressed by concealing the birth, section 201 can be resorted to. This being the position, section 318 may be safely omitted.

16.53. New section to punish failure to provide necessaries of life.-

Cases often arise where persons when legally bound to do so, fail without lawful excuse to provide the necessaries of life. Such illegal omissions ought to be punishable, and we recommend the insertion of a new section after section 317 in place of the present section 318. It may be as follows.-

"318. Failure to provide necessaries of life.- Whoever, being legally bound to provide the necessaries of life to any person, fails without lawful excuse to do so, knowing that such failure will endanger the life or seriously impair the health of that person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

Causing hurt

16.54. Section 319.- Section 319 which defines causing hurt needs no change.

16.55. Section 320 to be revised.-

The following changes are recommended in section 320 which defines grievous hurt.-

(i) The first clause may be omitted in view of the proposed widening of the fifth clause.

(ii) The second and third clauses may be combined and amplified to read "deprivation1 or impairment of the sight of either eye or the hearing of either ear."

(iii) In the fourth and fifth clauses, the word "organ" should be added, since the reference to "any member or joint" is not comprehensive.

(iv) In the seventh clause, there is no need to mention "tooth" expressly.

(v) In the eighth clause, any hurt which causes the sufferer to be in severe bodily pain for a period of ten days should be regarded as grievous hurt. On the other hand, relating grievousness of the hurt to the injured person being unable to follow his ordinary pursuits for twenty days does not appear to be the right approach, and it certainly leads to abuse in the nature of false hospital certificates.

We propose that section 320 may be revised as follows.-

"320. Grievous hurt.-The following kinds of hurt only are designated as grievous.-

(i) deprivation or impairment of the sight of either eye or the hearing of either ear;

(ii) deprivation or destruction of any organ, member or joint;

(iii) permanent impairment of the powers of any organ, member or joint;

(iv) permanent disfiguration of the head or face;

(v) fracture or dislocation of a bone;

(vi) any hurt which endangers life or which causes the sufferer to be in severe bodily pain for ten days."

1. The word "'privation" now used in these clauses is archaic.

16.56. Does voluntary sterilisation amount to causing grievous hurt.-

While dealing with the legal aspects of the family planning programmes, the Seminar on Criminal Law, which was held some time ago under the auspices of the Central Bureau of Investigation, felt that voluntary sterilization might arguably render the medical officer liable for grievous hurt and suggested that section 320 of the Code should be amended "so as to legalise sterilization when carried out as a part of family planning programme by a qualified doctor on an adult who has had some children". The Commission was asked to consider the suggestion in view of the importance attributed to family planning in general, and to sterilization as a method of population control in particular.1

Our examination of the position, however, reveals no need for an amendment of the law on the point. Sterilization would amount to grievous hurt, as it would amount to "permanent impairment of the powers of an organ", even if it might not be regarded as permanent impairment of the powers of any member or joint. But we have no doubt that the operation of sterilisation done at the instance of the person undergoing it is covered by the general exception in section 88. That section exempts from penal liability an act not intended to cause death, if the act be done in good faith for the benefit of the person to whom hurt is caused. Voluntary sterilisation done with consent is certainly for the benefit of the person undergoing it. No amendment of the law is necessary on this score.

1. F. 3(9)/56-L.C., Part VI, S. No. 408 (Suggestion of the Ministry of Home Affairs).

16.57. Sections 321 and 322.- No change is needed in sections 321 and 322.

16.58. Section 32.-Amendment recommended.-

In section 323, the amount of fine should be unlimited. The words "which may extend to one thousand rupees" should be omitted.

16.59. Causing hurt to envoys.-

We considered the question whether a special provision to punish the causing of hurt to diplomatic envoys is needed. It was suggested1 that, at present, there is no special provision in our laws for dealing with offence against the person of diplomatic envoys or members of their staff. In all cases when a non-cognizable offence is committed against them, they are precisely in the same position as any private person, and unless they choose to waive their immunity and step into a court of law, no case can be made out against the assailant.

Hence, it was suggested that a new section should be inserted making the offence of voluntarily causing hurt to a diplomatic envoy punishable with imprisonment for three years or fine or both and that this offence should be made cognizable. We do not, however, see any need for such provision. Though causing hurt is not a cognizable offence, there is nothing to debar a member of the diplomatic staff from making a complaint in court. The fact that the diplomatic representative enjoys immunity from appearance in court does not prevent a complaint by him or by a member of his staff. The present law creates no practical difficulty, and no amendment is needed.

1. F. 3(9)/56-L.C., S. No. 130 (Ministry of External Affairs).

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